Since we wrote the piece “How Donald Trump Could Lose the Election and Still Remain President,” it has become even more apparent that Donald Trump will attempt to create massive chaos and uncertainty following the November election, even if it is abundantly clear he has lost it. His repeated false statements about mail-in ballots creating election fraud and his efforts to slow U.S. Postal Service operations to impact the election results, as well as his unwillingness to state that he will accept the outcome of the election, make it all too clear that his deep decline in the polls only strengthens his resolve to question the integrity of the election. Trump’s recent call to move the date of the election is further indication that he plans to drive a narrative that a fair election cannot be run and he must take extraordinary measures as a result.
As we previously wrote, given the post-election chaos that Trump has been laying the groundwork for, as well as how the courts would likely rule, the ultimate decision on the outcome of the 2020 presidential election may fall to Congress in one way or another. Because of this, it is even more vital that the Democrats win certain congressional races. They could be so important to the presidential election that they must be treated as national races in and of themselves.
Since the pandemic will cause more people to vote by mail, tabulating election results is going to be a far more time-consuming process than normal. In all likelihood, this means that the final outcome in key swing states will probably not be known until the absentee ballots are counted. Most states do not even allow the opening of absentee and mail-in ballots until Election Day itself. The counting process, therefore, is sure to go on for many days, if not weeks. Consider this summer’s New York Democratic primary, when it took well over a month to tabulate the winners.
Trump is already foreshadowing that during this period he will sharply question the legitimacy of all the additional votes cast by mail. This becomes even more important, in his eyes, since evidence suggests college-educated voters, which lean very heavily anti-Trump, are more likely to vote by mail. Therefore, as those votes get counted, it is likely to increase the number of ballots that Biden receives relative to Trump, which the president will do everything possible to discredit.
How much disorder could Trump create with this ploy? After watching what went on in Portland, Oregon, it doesn’t take much imagination to see that when civil protests develop, Trump would likely seize the opportunity to send in federal forces to incite violence. While repeating his claims of election fraud, Trump would argue that broad civil unrest requires military-style action in the streets, particularly in swing states. This would play into his anti-democratic narrative that he needs to take extraordinary emergency actions, further entrenching his presidency with “investigations” into the “fraudulent” election, despite it being clear that he was voted out of office.
It is not inconceivable that Trump could attempt to hold onto office by simply refusing to leave and invoking some form of martial law under an Attorney General Bill Barr–backed interpretation of emergency presidential powers; however, this seems to many too extreme to be a believable scenario. That said, no one at this point should think that Trump creating post-election chaos based on an enormous increase in mail-in ballots is anything but very likely. Moreover, no one should think that a court is simply going to rule that Trump’s actions are out of bounds and his claims of a fraudulent election are unfounded.
The long process of counting votes plays into Trump’s hands by giving him more time to sow doubt about results and claim election fraud. In addition, and central to our concerns, in each of the nine swing states, both houses of the state legislature are Republican. As Trump spins a narrative that the election was “stolen,” he can pressure Republican legislators to put forward contested slates of Electoral College electors, thus creating further chaos and confusion.
If this occurs, there are two likely legal results of the Trump “nullify the election” propaganda campaign: (1) The Supreme Court could potentially disqualify electors on the basis that their state’s results are too unclear to certify before the December 14 statutory deadline when the Electoral College must meet, thereby throwing the entire election to the U.S. House of Representatives for resolution, as set out in the 12th Amendment to the Constitution; or (2) the Supreme Court might point to the Electoral Count Act of 1887, which states that the House and Senate together will decide which Electoral College electors are to be legally recognized, thus requiring Congress to decide which Electoral College slate in each of the contested states to certify.
As we wrote earlier, broad public awareness of these scenarios is vital to protect against them, first and foremost by creating a “people’s firewall” to stand up and resist these autocratic actions. Every citizen must vote and insist that all votes be accurately and fully counted. Every state and local official, civic organization and business leader must be ready to vigorously protest, including nonviolent demonstrations, making it clear that stealing this election will not be tolerated.
However, there is a far more fail-safe approach to preventing election theft, and it involves citizen action between now and Election Day. If we reach the final days of the election and confusion still reigns, the final decision will be made by either a majority vote in the House and Senate or by votes of each individual state delegation in the House.
The critical math is this: If the Democrats can win a net increase of five Senate seats, as well as flip one congressional seat in each of Pennsylvania, Florida and Montana, thus ensuring Democratic majorities in just over half the House delegations, the Democrats can prevail over any attempt to undo the election results through subverting the Electoral College outcome.
It is the newly elected Congress that will determine Electoral College slates, or determine the presidency if the election is thrown into the House chamber. The Democrats may lose the Democratic Senate seat in Alabama, and therefore would have to pick up four seats in the Senate to have a 50-50 party split. However, were these presidential election issues to land on Congress’ plate, Mike Pence will still be vice president, and so the Democrats would actually need to pick up five Senate seats to have a clear ability to defeat Trump’s potential Electoral College ploy in the Senate. Most political pundits point to the need for the Democrats to pick up four senate seats to flip the Senate, but the number necessary to assure the end of the Trump presidency, if it goes down this path, is five.
Concerning the House, the goal is to have a majority of states that have House delegations that are majority Democratic. If that were to happen, the House delegation count would be 26 Democratic state delegations and 24 Republican state delegations, versus the tally of 26 to 23 in the Republicans’ favor today (with one evenly split delegation). There are three states—Pennsylvania, Florida and Montana—which, by flipping one House seat in each, become majority Democratic delegations. According to the Cook Political Report, there are two Pennsylvania House seats currently held by Republicans that are sufficiently up for grabs to be in reach (the 1st and 10th Congressional Districts), two such seats in Florida (the 15th and 16th Congressional Districts) and one in Montana (a state with only one House seat but a Democratic governor and senator).
These races in the Senate and House deserve serious national support for the Democratic candidate if we are to be successful in building the ultimate checkmate against Trump. These races need to be fully nationalized and treated as every bit as important as the presidential race itself to safeguard our democracy. Supporting Biden for president means doing everything possible to support these Democratic candidates.
By nationalizing these races, it means the Democratic National Committee, the Democratic Senate Campaign Committee, the Democratic Congressional Campaign Committee and all the national campaign groups must pour money into these races as if Biden’s presidency depends on them. These elections may well be the difference between Trump being ousted from the presidency or not, so every citizen giving support to Biden must also consider financial and political support for these candidates.
The Republicans are spending millions of dollars to train and recruit 50,000 so-called “poll watchers,” and they will be targeting these elections. So special focus must be given to encouraging voting, counting and election security, as well as the recruiting of Democrats to work at the polls. Simply getting to the final results of these key congressional races against this backdrop will be no easy task, but the likelihood of getting the winners certified by early January, when Congress convenes, can be somewhat more certain.
The stakes are so high, the foreshadowing so dire and the outcome of these congressional races so pivotal that failure to mobilize and meet this challenge of nationalizing these races as part and parcel of the presidential race would be a tragic mistake.